European Union: The Article 29 Working Party Releases Draft Guidelines On Profiling And Automated Decision-Making Under The GDPR

On October 18, the Article 29 Working Party released its draft of "Guidelines on Automated individual decision-making and Profiling for the Purpose of Regulation 2016/679" ("Guidelines on Automated individual decision-making and Profiling," WP 251). The guidelines are not final yet and stakeholders may comment on these guidelines until November 28. 

Guidelines on Automated Individual Decision-Making and Profiling

The GDPR introduces new provisions addressing profiling and automated decision-making. Such instruments are used in an increasing number of sectors such as banking and finance, healthcare, taxation, insurance, marketing, and advertising. The Article 29 Working Party recognizes the benefits of profiling and automated decision-making, such as increased efficiencies and resource savings, but also points to significant risks can arise to individuals' rights and freedoms that require appropriate safeguards. The guidelines provide clarification regarding some core topics:

  • Profiling and 'solely' automated processing. The Article 29 Working Party recognizes that there are three ways in which profiling can be used in practice: (i) general profiling (defined in Article 4(4) GDPR); (ii) decision-making based on profiling; and (iii) solely automated decision-making, including profiling according to Article 22 GDPR. Automated decisions can be made with or without profiling, which in turn can take place without making automated decisions. Only where the profiling is based on solely automated processing does Article 22 GDPR apply, and in all other cases of general profiling the 'normal' system of the GDPR applies.
  • Processing activity that is wholly automated and leads to decisions that impact the individual in a sufficiently significant way is generally prohibited. The Article 29 Working Party interprets Article 22 of the GDPR as a prohibition on fully automated individual decision-making, including profiling that has a legal effect on, or similarly significantly affects, an individual. A decision is solely based on automated processing if there is no human involvement in the decision process. However, the key elements are the notions of 'legal' or 'similarly significant' effects, which the GDPR does not define. The Article 29 Working Party explains that "a legal effect suggests a processing activity that has an impact on someone's legal rights, such as the freedom to associate with others, vote in an election, or take legal action. A legal effect can also be something that affects a person's legal status or their rights under a contract." And even where no legal (statutory or contractual) rights or obligations are specifically affected, the data subjects could still be impacted sufficiently to require the protections under this provision. According to the Article 29 Working Party, in many typical cases, targeted advertising does not have a significant effect on individuals; for example, an advertisement for a mainstream online fashion outlet based on a simple demographic profile for 'women in the Brussels region.' But the Article 29 Working Party takes the view that it is possible that targeted advertising can have a significant effect on an individual depending on his or her specific characteristics, and considering the following attributes:

    • the intrusiveness of the profiling process;
    • the expectations and wishes of the individuals concerned;
    • the way the advertisement is delivered; or
    • the specific vulnerabilities of the data subjects targeted.

    In practice, this can be interpreted so that if data processing related to online advertising activities has a significant effect on an individual, this processing is prohibited and, to lawfully process the data, explicit consent by the data subject is required. Processing that might have little impact on individuals generally may in fact have a significant effect on certain groups of society, such as minority groups or vulnerable adults. Additionally, the Article 29 Working Party clarifies that automated decision-making that results in differential pricing could also have a significant effect if, for instance, prohibitively high prices effectively bar individuals from certain goods or services.
  • Exceptions to the prohibition. For automated decision-making under Article 22 GDPR, only three exceptions apply to justify the processing: (i) the automated decision-making is necessary under Article 22(2)(a) for entering into, or the performance of, a contract; (ii) the data subjects give their explicit consent; and (iii) Union or Member State law provides a legal basis. Here, the Article 29 Working Party reiterates its view, already published in its Opinion on legitimate interests (WP217), that "necessity" should be interpreted narrowly. According to the Article 29 Working Party, the controller must be able to show that profiling is necessary, and that no less privacy-intrusive methods could be adopted. This requirement of necessity apparently constitutes a high hurdle for the controller. 'Explicit consent' is not defined in the GDPR, but the implication is that consent must be specifically confirmed by an express statement rather than some other affirmative action. The Article 29 Working Party announced that 'explicit consent' will be addressed in the forthcoming consent guidelines. 
  • Rights of the data subject. Given the potential risk and interference that profiling poses to the rights of data subjects, the Article 29 Working Party states that data controllers should be particularly mindful of their transparency obligations since the profiling process is often invisible to the data subjects. Profiling involves the creation of derived or inferred 'new' personal data about the data subjects, which they themselves have not directly provided. The Article 29 Working Party also clarified the importance of the other data subject rights, including the right to access.  
  • General provisions on profiling and automated decision-making. The Article 29 Working Party provides an overview of the provisions applied to both profiling and automated decision-making. To aid compliance, the Article 29 Working Party states that controllers should consider the following key areas:

    • Transparency of the profiling process, as the process is often invisible to the data subject. The profiling process involves the creation of derived or inferred 'new' personal data about the data subjects, which they themselves have not directly provided.
    • Compatibility of additional processing with the original purpose for which the data was collected. 
    • Data minimization and the ability to explain and justify the need to collect and hold the personal data. Controllers should consider accuracy at all stages of the profiling process, specifically when collecting and analyzing data, building a profile for an individual or applying a profile for making decisions affecting the individual.
    • Storage limitation, because the long-term storage of information can conflict with the proportionality consideration.

The Annexes to the Guidelines, beginning on page 28, provide best practice recommendations built on the experience gained by EU Member States.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.